Judge: Hedley J
Citation:  EWHC 2400 (COP)
Summary: Hedley J was required in respect of an elderly gentleman called X to consider his capacity to: (1) marry; (2) make a will; (3) revoke or grant an enduring or lasting power of attorney; (4) manage his affairs; (5) litigate; and (6) litigate. Hedley J was also required to consider whether he had capacity to decide with whom he had contact, although that last issue was not for immediate determination.
Whilst the judgment is of importance for the approach taken to the questions of capacity, they can only properly be understood against the (Tolstoyan) background set out by Hedley J.
The first of two key events in the case occurred in April 2008, when X’s former wife died. They had been married for 56 years. It is clear that her death was not only a great shock to X and to the whole family, but it forced into the open a state of affairs which had hitherto been managed within the family. The immediate family consisted of three adult children known as A, B and C, all of whom were themselves married with children. Hedley J found that, even making all allowances for family loyalty and respect, it was quite clear that this was a close and trusting family, in which X held a revered role as a loved and respected husband, parent and grandfather. It is also the case that he was a man of significant means deriving from the family business. X was clearly a skilled and highly intelligent man. However, he was bored by, and therefore not very effective at, routine business administration, which he usually entrusted to others, whether a secretary, a professional or a family member. However, by 2007, the family were becoming anxious because of X’s increasing tendency to forget things and to get lost; so much so that, in November 2007, Mrs B took over the running of his affairs. However, personal relations within the family appeared to be unaffected by these matters. In May 2008, after the death of his wife, X was diagnosed with dementia. In September 2008, he executed lasting powers of attorney in favour of A, B and C.
In 2010, Z came on the scene. Hedley J found that this marked the second key shift in events in this case. In July 2010, she was employed as a full-time carer. In October 2010, X said that he would like to marry Z. From that point on, relationships within the family deteriorated badly quite rapidly and ultimately found expression in litigation brought by A, B and C.
Hedley J was quite satisfied that all three of A, B and C were wholly honourable in their intentions towards X, and sought his best interests in all matters. Unfortunately, that had not always been recognised by X. He was also satisfied that Z was honourably disposed towards X; however, she was “a persistent, effective and somewhat strident woman with a style that the others have come to resent. She and A were designed to clash, and clash they did; a clash made more toxic by each entertaining serious doubts about the good faith of the other towards X.
X was therefore put in an impossible position. He clearly believed himself to be in love with Z, and indeed they were cohabiting. He looked to her to help him, and became (in Hedley J’s view) highly influenced by her and increasingly dependent upon her, taking in consequence her side on many issues. In consequence of a conflict which he could neither understand nor control, he apparently became estranged from his children (albeit, in the absence of Z, Hedley J accepted that he enjoyed a warm and close relationship with his family, as he did with Z in the absence of A, B and C; “[r]emove the conflict and you remove many of X’s problems” (para 15).
Hedley J had medical evidence before him from three experts, one instructed by each of the sides, and the other (whose instruction had been recommended by the other two) jointly instructed. Hedley J expressed his regret that (in part because of the differences in the practice of the two psychiatrists), “each appeared as one instructed by the side whose views they supported” (para 16), albeit that he emphasised that he recognised that this was not in fact so. He had no such reservations about the impression given by the evidence of the neuropsychiatrist. He made clear, however, that in reaching his views, he had not relied upon the conclusions expressed by the experts, but “only on the steps of reasoning and the factual basis which led them to their views” (para 20).
Having analysed the evidence in some detail, Hedley J declared himself satisfied – by way of general background – that “in respect of some issues of capacity the areas of complex thought abilities may play a more significant role than in others. Moreover, I am satisfied that in some respects X’s capacity may fluctuate. That explains differences in experience that are, as I find, accurately reported and assessed by the three forensic experts” (para 27).
Hedley J then turned to the specific issues in respect of which he had to determine X’s capacity to take decisions, and found thus:
As regards the capacity to marry, Hedley J expressed himself in complete and respectful agreement with the approach taken by Munby J (as he then was) in the (pre MCA 2005) case of Sheffield City Council v E & Anr  2 WLR 953, and specifically associated himself with the final observation made by Munby J (at paragraph 144) that:
“There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.”
Asking himself whether A, B and C had satisfied him that X lacked the capacity to marry (i.e. to give effect to the presumption of capacity in s.1(2) MCA 2005), he found that they had not:
“32. … Although I accept that X has suffered a significant decline in executive function, he retains many aspects of his intelligence in the fundamental level and it is at that point that it is important to have in mind that the requirements of capacity to marry are comparatively modest. I actually think it highly probable that he retains an understanding of the marriage contract and that his 56 years of beneficent experience of marriage has firmly etched upon his understanding the duties and responsibilities that go with it. Certainly I am not satisfied to the reverse and I decline to make any declaration that he lacks capacity to marry. I add only this, inevitably.Whether any decision that he might take to marry is wise or unwise, whether it leads to happiness or regret, is simply none of my business and I am simply unable to take into account any specific plans he might have in that direction.”
Capacity to make a will
Turning to X’s capacity to make a will, Hedley J reminded himself that the law was long-established, derived from the decision in Banks v Goodfellow  LR 5 QB 549. Applying the principles to the facts before him, he confessed that he had found answering the question whether the Applicants had discharged the burden upon them “quite difficult.” He continued:
“36. On the one hand, if one looks at X’s statement, he demonstrates an understanding of his obligations and makes perfectly sensible and proper proposals as to what should be in his will. On the other hand, I am impressed by the medical evidence, which points out a dramatic decline in executing functioning in the context of further inevitable deterioration, and that seems to me to raise serious concerns as X’s own affairs are relatively complicated. I have also borne in mind the differing impressions of the doctors in relation to this question of testamentary capacity and the factors that I set out earlier in this judgment which may have the affect of retarding on the one hand or accelerating on the other the deteriorating progress of this disease.
Hedley J came to the conclusion that he could not make a general declaration that X lacks testamentary capacity, “but that [conclusion] needs to be strongly qualified. “There will undoubtedly be times when he does lack testamentary capacity. There will be many times when he does not do so. The times when he does lack such capacity are likely to become more frequent. It follows that, in my judgment, any will now made by X, if unaccompanied by contemporary medical evidence asserting capacity, may be seriously open to challenge. I draw attention, if I may, to a helpful passage in Heywood & Massey, provided by Counsel for the Applicants, at paragraph 4046, which deals with borderline capacity. It seems to me that the advice contained in that is very much applicable to this case” (para 37).
Capacity to revoke or create enduring or lasting powers of attorney
Hedley J found with relative ease that the Applicants had not satisfied him that X lacked capacity to revoke a power of attorney in their favour (if, indeed, that was a live issue as the revocation had been accepted and the registration cancelled). The question of whether X had the power to create an EPA much more difficult for the same reasons as applied in relation to testamentary capacity. Unsurprisingly, perhaps, he reached the same conclusion, namely that he could not make a general declaration that X lacked the capacity, but that this was qualified “the exercise of such a power, unless accompanied by contemporary medical evidence of capacity, would give rise to a serious risk of challenge or of refusal to register. It seems to me, for exactly the same reasons as I endeavoured to set out in relation to testamentary capacity, that X’s capacity is likely to diminish in the future and there will be times when undoubtedly he lacks capacity, just as there will be times when he retains it” (para 38)
The management of affairs
Applying, in particular, the approached adopted by Kennedy LJ in Masterman-Lister v Brutton & Co & Ors  1 WLR 1511 (paragraph 18-20), Hedley J found (on the basis of the evidence of the neuropsychiatrist) that, on balance, X lacked the capacity to manage his own affairs. However,
“41… In so finding, I acknowledge, as I have done in relation to the other matters, that there would be times when a snapshot of his condition would reveal an ability to manage his affairs, but the general concept of managing affairs is an ongoing act and, therefore, quite unlike the specific act of making a will or making an enduring power of attorney. The management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. In the context of the evidence that I have, I am not satisfied that he has capacity to manage his affairs.”
Hedley J identified the heart of the test as being that formulated by Chadwick LJ in Masterman-Lister at paragraph 75, as being whether:
“… the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend.”
Importantly, Hedley J noted that, whilst the question of capacity to litigate “inevitably follows closely” on the question of the management of one’s own affairs, it required (at least on the facts of the case before him) separate consideration because “it does operate in a separate and more restricted time frame, but a time frame quite different to the decision to make a will or to grant a power of attorney” (para 44).
Hedley J noted, but discounted, X’s hearing difficulties, because they were irrelevant to the question of capacity (the hearing difficulties having been addressed and X in consequence having been able to “hear the essence of what has gone on in this hearing” (para 44). However, he found that, on balance, and looked at in the round, X lacked the capacity to conduct the litigation, made in light of the factors identified already in the judgment.
Hedley J noted that he would not have wished to make any decision upon X’s capacity to decide with whom he should have contact if a finding had been sought, emphasising that “[t]he idea that this distinguished elderly gentleman’s life should be circumscribed by contact provisions as though he was a child in a separated family is, I have to say, deeply unattractive. I believe that, on reflection, the parties may be inclined to think so too” (para 46). He concluded with an injunction to the parties to take stock of the fact that the greatest gift that anyone could bestow upon X would be to bring the conflict between them to an end so as to allow the time that was left to X to be one that could be enjoyed by family old and “if circumstances so decide” new as well (para 48).
At the outset of his judgment (para 3), Hedley J identified two case management lessons which he believed the case taught: “[t]he first is the need in the Court of Protection for a much greater emphasis on the importance of judicial continuity and, secondly, for the need for a pre-hearing review in respect of any case which is estimated to last three days or more. Either or both of those matters may have had the effect of avoiding the rather bruising experience of the first afternoon, when it seemed at least to me, rightly or wrongly, that there was a lack of clear direction in terms of the trial.” In the event, the parties conducted themselves in such a way that it was possible to overcome the difficulties caused by late filing of quite substantial amounts of evidence and bring about a focused and relatively expeditious hearing.
Comment: It is slightly ironic that we have reported previously the judgment of Hedley J in LB Haringey v FG & Ors (No. 1)  EWHC 3932 (COP) in which he decried undue citation of first instance judgments upon questions of capacity, because (at the risk of sounding unduly deferential), the judgments given in both this case and that of NYC v PC and NC (discussed elsewhere in this newsletter) represent paradigms of the approaches that should be taken to the assessment of capacity. It is, further, of particular significance for the following reasons:
(1) Its confirmation that the approach adopted by Munby J in Sheffield City Council v E to the capacity to consent to marry remains the right one, and its endorsement of the clear principle that the bar must not be set too high (to similar effect in the latter regard, see also the judgment of Baker J in PH v A Local Authority and Z Limited and another  EWHC 1704;
(2) The ‘qualified’ declarations made by Hedley J regarding X’s capacity both to make a will and to create an EPA. Such declarations (which really amount to declarations which must be read together with the accompanying passage of the judgment) may not find an express place in the scheme of the MCA 2005, but they represent a way in which the immensely complicated questions of borderline/fluctuating capacity can pragmatically be answered in such a way as to preserve P’s autonomy to the maximum extent possible compatible with the protection of their interests;
(3) The approach taken to the question of managing X’s affairs, and the distinction drawn there between an ongoing state of affairs and the doing of a specific act (or acts). We might also suggest that this distinction could appropriately be drawn in respect of other ongoing states of affairs – for instance, as to whom X wishes to have living in their house – where, at times, a snapshot of their condition would suggest that they had the capacity to take the decision, but otherwise they lacked the capacity to do so. As such, it potentially provides a further way in which to cut the otherwise philosophically Gordian knot of fluctuating capacity;
(4) The approach to the expert evidence, and the (re)emphasis upon the point – made also by Baker J in PH and CC v KK  EWHC 2136 (COP) – that it is for the Court, and not for the experts, to determine whether the individual in question has the material capacity;
(5) The case management points made at the outset of the judgment – lack of judicial continuity, in particular, being a matter which plagues applications before the Court of Protection given the length of time they can take to resolve. Whether Hedley J’s plea for greater emphasis to be placed upon such continuity will be capable of being addressed remains to be seen.